DOJ Charging Policy

CORPORATE CRIMES

UNIVERSITY OF IOWA, COLLEGE OF LAW

 History

 1999 – AG Holder issues “Federal Prosecution of

Corporations,” aka “the Holder Memo”
 Response defense bar request for transparency and consistency
 2003 – Thompson Memo
 Added cooperation and compliance facts
 2006 – McNulty Memo
 Attorney-client privilege
 2008 – Filip Memo
 More ACP
 2015 – Yates Memo
 Prosecuting individuals
 Breakout Discussion

What caught your attention? What themes emerged?

 Themes

 Treat corporations like individuals

 Unpredictable balancing tests
 Many, many factors
 Holistic approach
 Manual not enforceable
 Non-criminal avenues available
 Factors

 Nature and seriousness of the offense

 Pervasiveness of the wrongdoing
 History of similar misconduct
 Cooperation
 Voluntary disclosure, relevant information, relevant actors
 NOT attorney-client privilege waiver
 Existence of effective compliance program
 Corporations’ remedial actions
 Collateral effects
 Adequacy of other remedies, like civil and regulatory
 Et cetera
 Yates Memo

 “One of the most effective ways to combat

misconduct is by seeking accountability from
individuals who perpetrated the wrongdoing.”
 Must disclose all relevant facts for cooperation credit
 Investigate individuals from beginning
 Deals should ensure continued cooperation
 Must file report if settling with corp before
individuals
 Must file report if no actions brought against
individuals
 Breakout discussion

Would you want to add anything to the list of factors

considered?
 Summary

 US Attorney Guidelines Manual

 How prosecutors decide whether and what to charge
 Unenforceable, but tremendously important
 Themes: treat corporations like individuals, balancing tests,
looks at past (misconduct) and present (compliance) and
future (how responded to misconduct)